Filed 1/29/14 P. v. Valencia CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B246514
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA095355)
v.
GABRIEL CERVANTES VALENCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert M. Martinez, Judge. Modified and, as modified, affirmed with directions.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and Esther
P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Gabriel Cervantes Valencia appeals from the judgment entered
following his convictions by jury on count 1 – second degree robbery (Pen. Code, § 211)
with a principal personally using a firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1)),
count 2 – possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and
count 3 – dissuading a witness by force or threats (Pen. Code, § 136.1, subds. (b)(1)
& (c)(1)) with findings as to each offense the offense was committed for the benefit of a
criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), appellant was released on bail or
on his own recognizance when he committed the offense (Pen. Code, § 12022.1), he
suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and he suffered a prior
serious felony conviction (Pen. Code, § 667, subd. (a)). The court sentenced appellant to
prison for a total of 28 years four months. We modify the judgment and, as modified,
affirm it with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed except as to
count 3, established that on August 25, 2011, shortly before midnight, appellant robbed
Danielle Martinez in Azusa as follows.1 Martinez was sitting in her car which was
parked in front of the apartment building of her friend, Jose Contreras, and she was
waiting for him. A van, its headlights on, drove up and parked in front of, and facing,
Martinez’s car. Martinez testified her headlights were on in the beginning, she later
turned her car off, and it was not running at the time of the incident.
A man exited the driver’s side of the van, approached Martinez’s driver’s side
window, and asked her to roll it down. She complied. The man asked Martinez what she
was doing there and she replied she was picking up Contreras. The man asked where
Contreras was, and Martinez replied she was waiting for him. The man lifted the right
1
There is no dispute appellant committed the offenses alleged in counts 1 and 2. In
light of that fact and our analysis of appellant’s contentions on appeal, there is no need to
detail the identification evidence appellant was a person who committed the crimes alleged
in counts 1 through 3.
2
side of his shirt and displayed a gun in his waistband. Martinez testified the man
(hereafter, gunman) asked her if “[she] had his money or something.” The gunman asked
Martinez to give him her wallet and purse, and also asked if Martinez was spending his
money. He was about two feet from Martinez.
Martinez began throwing everything out of her car. At that time, Martinez saw a
second man emerge from the passenger side of the van and approach her on the driver’s
side of her car. The second man began threatening Martinez and told her to throw her
belongings into the street.
Martinez’s car had four doors. She opened the driver’s door and exited. The
gunman backed up perhaps a foot. Martinez opened the left rear door and entered the
back of her car. She subsequently threw other items out of the car. The second man
came to the left rear door where Martinez was and told her to hurry and throw her things
out. Martinez testified the second man got pretty close because he hit her on the back of
the head, but she also testified she did not know who hit her. Martinez also testified that
the gunman hit her on the head and that she told this to an officer. Martinez was in the
back seat when she was hit on the back of her head.
After Martinez was hit on the head, Contreras arrived and asked what was
happening. Martinez was in the back seat and the two men were on the driver’s side of
Martinez’s car. Martinez testified “. . . I heard them two yell at him saying something,
‘Where’s my money?’ ” Contreras fled and the two men chased him. About a minute
later, the two men returned and put Martinez’s property into the van. Appellant robbed
Martinez of various property, including purses, money, credit cards, and her driver’s
license reflecting her personal information.
One of the two men wrote down Martinez’s license plate number. Martinez did
not remember which of the two men wrote down her license plate number. Neither man
said anything to her after one wrote down her license plate number. Martinez denied
telling an officer “they threatened [Martinez] that they had [her] personal information and
3
knew where to find [her] if [she] were to tell anyone.”2 Martinez also denied
remembering she told this to an officer. After one of the two men wrote down her license
plate number, they left the scene.
Martinez testified there were “only two guys” in this case and she did not see more
than two people. About five to seven minutes passed from the time the two men first
approached Martinez to the time they finally left. Martinez testified the gunman and
second man were probably equally close to Martinez “from where [she] was sitting.”
Azusa Police Officer Robert Chivas testified as follows. About 11:57 p.m. on
August 25, 2011, Chivas responded to the location and talked with Martinez. She told
him that before they left, one of the subjects wrote down her license plate number,
although she did not know whether that subject was the gunman or the second man. The
following then occurred during the People’s direct examination of Chivas: “Q. And then
what else did she tell you about one of those two subjects before they left? [¶] A. They
had made a mention something to the effect of that they now had her information and that
they would be able to find her if she -- if she told anybody what had happened.”
Contreras testified as follows. On the night of the robbery, he saw a van drive up
in front of Martinez’s car and he fled onto a golf course. He knew a person named
Gabriel, and appellant was Gabriel. Appellant was an Azusa 13 gang member. Contreras
was in protective custody at time of trial, he was a “greenlighter,” and he was worried
and nervous. During cross-examination, Contreras denied he saw a gun on the night of
August 25, 2011. Contreras testified “from him opening his hood of his car and from my
knowledge from the past, I knew that’s where he would put his gun.”
2
Martinez testified that in the beginning she was concerned about retaliation because
“these people had my information.” Four days after the robbery, Azusa Police Detective
Thomas Avila interviewed Martinez and discussed a photograph she previously had selected
during a photographic lineup. During the interview, Martinez asked if the document was a
public record and whether someone would “look up and see if, . . . I had pointed someone out
or identified someone . . . .” Martinez denied she was afraid at time of trial. She was not
afraid at time of trial because she had not identified the robber at the preliminary hearing.
4
Azusa Police Officer Jason Kimes testified that about 11:57 p.m. on August 25,
2011, he responded to the crime scene and Contreras told him three persons exited a van,
Contreras fled, and the three chased him. One of the three was the van’s driver, Gabriel.
Kimes also testified Contreras said the following. Gabriel and his “three friends”
first approached Contreras and, after Contreras fled, Gabriel and his three friends went in
the van, then went to Contreras’s friend, who was sitting in a parked car. Gabriel then
took out what appeared to be a black semiautomatic handgun from under the hood of the
van, and “the three subjects approached [Contreras’s] friend who was sitting in the car
and robbed her.”
Azusa Police Detective Thomas Avila interviewed Contreras at the station and
Contreras told him the following. Gabriel’s van pulled up right beside Martinez, and
“they just jumped out the car and they did what they did.” Contreras did not get a good
look at what happened until he turned around. Contreras said, “By the time I turned
around, I just heard Danielle like screaming kind of and then I just seen -- I seen them
open up the hood of their car and from my understanding from before, I know . . . in the
hood of his car he always -- that’s where he has his stuff . . . .” Avila asked what
Contreras meant by “stuff,” and Contreras replied, “. . . that’s where he puts the stuff.
You know, he puts the drugs or his gun. In the hood it’s like he has like a stash pot in
there.” Contreras said “. . . I don’t know why he would pull out any drugs at that time, so
I was thinking that he was maybe pulling out his gun, . . .”
Contreras told Avila that Contreras guessed “he . . . threatened her” and took her
belongings. Contreras also said “it looked like a gun” but he was on the golf course and
pretty far from the scene. Contreras also told Avila the following. Contreras could not
describe the gun in detail. Gabriel was holding what Contreras thought was a gun.
Contreras did not know exactly what happened but they pulled away and left. Contreras
returned and Martinez said “they pistol whipped her.”
Avila testified that on October 5, 2011, he was driving Contreras to court. Avila
testified without objection, “During general conversation, Mr. Contreras had said he got a
5
phone call from Mr. Valencia. The phone call he had told -- or was Mr. Contreras getting
ahold of victim Martinez to tell her not to testify in this case against him.”3 In response
to the prosecutor’s hypothetical questions based on evidence in this case, Avila opined at
trial appellant was an Azusa 13 gang member and the robbery, possession of a firearm,
and threat at the scene, as well as a telephone threat weeks later, were committed for the
benefit of the gang. Appellant presented no defense witnesses.
ISSUES
Appellant claims (1) there is insufficient evidence supporting his conviction on
count 3, and (2) Penal Code section 654 barred multiple punishment on counts 1 and 2.
DISCUSSION
1. There Was Sufficient Evidence Supporting Appellant’s Conviction on Count 3.
a. Pertinent Facts.
During jury argument, the prosecutor argued appellant committed the offense
alleged in count 3 based on the dissuasion that occurred on August 25, 2011, i.e.,
because, according to the prosecutor, appellant told Martinez “not to tell anybody
because they’ve got her information.”4 The prosecutor also argued appellant committed
the offense by force and threat because Martinez was hit on the head with a gun. The
prosecutor did not, during jury argument, refer to appellant’s October 5, 2011 telephone
call to Contreras (although appellant’s counsel did). Following jury argument, the court
3
During direct examination, the prosecutor asked Contreras if, during a drive with
Avila, Contreras told Avila that Contreras received a call from appellant while appellant was
in custody and that appellant told Contreras to tell Martinez not to testify against appellant.
Contreras replied, “No. I didn’t get a call from him personally.” The prosecutor asked
whether Contreras told a detective that Contreras received such a call, and Contreras replied
he did not remember.
4
In particular, the prosecutor argued (1) Martinez testified someone wrote down her
license plate number, (2) she did not hear the threat, (3) Chivas testified she told him a
suspect told her not to tell anyone because they had her information, (4) she did not know
who made that statement, but (5) appellant, the driver and gunman, was the person she talked
with during the entire incident and he knew she was a robbery victim because he had just
robbed her.
6
told the jury that count 3 “may only be based on evidence relating to August 25, 2011”
and “may only be based on events of August 25, 2011, and not later in some telephone
call.”5 The jury convicted appellant on count 3 as previously indicated.
b. Analysis.
Appellant claims there is insufficient evidence supporting his conviction for
dissuading a witness by force or threat (count 3). He does not dispute that on August 25,
2011, he robbed Martinez and she was the victim of dissuasion proscribed by Penal Code
section 136.1, subdivisions (b)(1) and (c)(1). Instead, appellant argues there was
insufficient evidence he was the direct perpetrator of the August 25, 2011 dissuasion, and
there was insufficient evidence he aided and abetted the dissuader. We reject the claim.
As we discuss below, there was sufficient evidence appellant was a direct perpetrator of
the August 25, 2011 dissuasion. There is no need to reach the issue of whether he was an
aider and abettor.
First, although the prosecutor asked Chivas, “And then what else did [Martinez]
tell you about one of those two subjects before they left?” (italics added), Chivas replied
without objection, “They had made a mention something to the effect of that they now
had her information and that they would be able to find her if she -- if she told anybody
what had happened.” (Italics added.) Chivas’s reply provided substantial evidence
appellant and his confederate directly perpetrated the August 25, 2011 dissuasion.
Second, following jury argument, the court commented the jury had not been
advised that “the only basis for count 3 is the incident at the time of the robbery and not
any other point.” (See fn. 5, ante.) The prosecutor indicated that during jury argument
5
Following jury argument, the court noted the jury had not been advised that “the only
basis for count 3 is the incident at the time of the robbery and not any other point.” The
prosecutor indicated that, during jury argument, he had referred only to that incident. The
court indicated it would instruct the jury “the basis of count 3 may only be the event of
August 25, 2011” “[a]nd not any subsequent conduct.” Later, the court told the jury,
“[C]ount 3, dissuading a victim, may only be based on evidence relating to August 25, 2011.
Each of the three crimes are alleged to have occurred – and, again, count 3 may only be
based on events of August 25, 2011, and not later in some telephone call.”
7
he had referred only to that incident. Fairly read, the prosecutor’s comment indicated
that, during jury argument, he had engaged in an election of offenses, i.e., he had elected
to base count 3 solely on the August 25, 2011 alleged criminal dissuasion and not on
appellant’s October 5, 2011 telephone call to Contreras. (See People v. McKinzie (2012)
54 Cal.4th 1302, 1368; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The trial
court’s subsequent instruction to the jury count 3 “may only be based on evidence
relating to August 25, 2011” and “may only be based on events of August 25, 2011, and
not later in some telephone call” confirmed the prosecutor’s election.
However, Avila’s testimony about appellant’s October 5, 2011 telephone call to
Contreras was admitted into evidence without objection. Although count 3 was based on
the alleged dissuasion that occurred on August 25, 2011, Avila’s testimony about
appellant’s October 5, 2011 telephone call, fairly read, indicated that on that date
appellant engaged in additional dissuading conduct, i.e., he told Contreras to tell Martinez
not to testify against appellant in this case. There is no dispute that on August 25, 2011,
either appellant or his confederate engaged in criminal dissuasion to prevent Martinez
from testifying in the present case. On October 5, 2011, appellant engaged in
substantially similar criminal dissuasion to prevent the exact same person, Martinez, from
testifying in the exact same case. The October 5, 2011 telephone call and August 25,
2011 dissuasion shared common features that were sufficiently distinctive they provided
substantial evidence appellant was the person who committed both acts. (See People v.
Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, 403.)
Third, even if, as appellant suggests, only appellant’s confederate directly and
orally perpetrated the August 25, 2011 dissuasion, there was still substantial evidence
appellant engaged in that dissuasion. Based on the evidence, the jury reasonably could
have concluded appellant and a confederate jointly robbed Martinez. There was also
substantial evidence appellant and the confederate worked together and were in close
proximity to each other whenever they were in Martinez’s presence. Thus, the jury
reasonably could have concluded beyond a reasonable doubt that even if appellant did not
8
directly and orally perpetrate the August 25, 2011 dissuasion, his confederate did and
appellant heard him do so. Although appellant suggests he was unaware of the August
25, 2011 dissuading threat, he concedes it “was established . . . appellant . . . was present
when the threat was made.”
Our Supreme Court has observed, “ ‘When a person makes a statement in the
presence of a party to an action under circumstances that would normally call for a
response if the statement were untrue, the statement is admissible for the limited purpose
of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation
may be considered as a tacit admission of the statements made in his presence.’ ”
(People v. Riel (2000) 22 Cal.4th 1153, 1189, italics added.) This admission is an
adoptive admission. (Ibid.)
In sum, even if appellant’s confederate was the only direct, oral perpetrator of the
August 25, 2011 dissuasion, the jury reasonably could have concluded beyond a
reasonable doubt appellant’s confederate, in appellant’s presence and within his hearing,
orally stated “they” had Martinez’s information and “they” would be able to find her if
she told anyone what had happened. The statement of appellant’s confederate thus
indicated appellant’s confederate and appellant had the information and would be able to
find her, and implied criminal dissuasion by appellant’s confederate and appellant.
Neither Martinez nor Chivas testified appellant responded to, or denied, the
statement of appellant’s confederate. Thus, there was substantial evidence appellant’s
confederate made a statement in the presence of appellant under circumstances that
would normally call for a response if the statement were untrue (because the statement
implied the confederate and appellant were criminally dissuading Martinez), appellant
reacted with silence, and his silence was a tacit admission appellant had Martinez’s
information and would be able to find her (and was thus dissuading her). Appellant’s
silence was an adoptive admission of his confederate’s statement. We conclude there
was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt,
9
appellant was the direct perpetrator of the August 25, 2011 dissuasion. (Ochoa, supra,
6 Cal.4th at p. 1206.)6
2. Penal Code Section 654 Did Not Bar Multiple Punishment on Counts 1 and 2.
During the December 10, 2012 sentencing hearing in the present case, the court
sentenced appellant to prison on count 1 (the robbery) and count 2 (possession of a
firearm by a felon), then stated Penal Code section 654 did not apply “since the crime
[count 2] was committed in advance of the commission of the robbery.”
Appellant claims Penal Code section 654 barred multiple punishment on counts 1
and 2. He argues he was convicted on counts 1 and 2 but the robbery and possession of a
firearm, respectively, were simultaneous with the result Penal Code section 654 barred
multiple punishment on those counts. He also argues that as to the robbery, the jury
found true the allegation a principal personally used a firearm but found not true the
allegation appellant personally used a firearm; therefore, he possessed the firearm for
purposes of count 2 only as an aider and abettor, and there is insufficient evidence that,
prior to the robbery, he possessed the firearm for purposes of count 2 as an aider and
abettor. We reject the claim. As we discuss below, there was sufficient evidence
appellant was a direct perpetrator of the August 25, 2011 firearm possession prior to the
robbery. There is no need to reach the issue of whether he was an aider and abettor.
Penal Code section 654, as interpreted by our Supreme Court, prohibits multiple
punishment for offenses committed during an indivisible transaction. Whether a course
of conduct is indivisible depends on the intent and objective of the actor. (People v.
6
Appellant’s reliance on People v. Leon (2008) 161 Cal.App.4th 149 (Leon), is
misplaced. In Leon, the People argued on appeal the alleged fact the defendant stared at the
victim, along with other evidence, provided sufficient evidence the defendant aided and
abetted a codefendant who committed witness intimidation. Leon assumed without deciding
staring could constitute an “act” that would support aiding and abetting liability, then
rejected the People’s argument, holding there was no evidence of the alleged staring. In the
present case, we conclude there was substantial evidence appellant was a direct perpetrator
based on, inter alia, substantial evidence appellant directly and orally dissuaded Martinez on
August 25, 2011, and/or substantial evidence appellant adopted his confederate’s direct, oral
dissuasion of that date.
10
Perez (1979) 23 Cal.3d 545, 551.) If all offenses are incident to one objective, the
defendant may not be punished for more than one. However, if the defendant entertained
multiple criminal objectives which were independent of and not merely incidental to each
other, the defendant may be punished for independent violations committed in pursuit of
each objective even though the violations shared common acts or were parts of an
otherwise indivisible course of conduct. (Cf. People v. Bradley (2003) 111 Cal.App.4th
765, 769, fn. 3.)
Whether Penal Code section 654 applies in a given case is a question of fact for
the trial court, which is vested with broad latitude in making its determination. The trial
court determines a defendant’s intent and objective under section 654 by a preponderance
of the evidence. (Cf. People v. Cleveland (2001) 87 Cal.App.4th 263, 266, 268-270
(Cleveland); see People v. Harris (2009) 171 Cal.App.4th 1488, 1497-1498 (Harris);
People v. Lewis (1991) 229 Cal.App.3d 259, 264; People v. Levitt (1984) 156 Cal.App.3d
500, 515.) The court’s findings will not be reversed on appeal if there is any substantial
evidence to support them. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
We view the evidence in the light most favorable to respondent and presume in support
of the sentence the existence of every fact the trial court reasonably could have deduced
from the evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 627.)
In People v. Bradford (1976) 17 Cal.3d 8 (Bradford), a case similar to the present
one, our Supreme Court stated, “The standard for applying section 654 in the
circumstances of this case was restated in People v. Venegas (1970) 10 Cal.App.3d 814.
‘Whether a violation of section 12021, forbidding persons convicted of felonies from
possessing firearms concealable upon the person, constitutes a divisible transaction from
the offense in which he employs the weapon depends upon the facts and evidence of each
individual case. Thus where the evidence shows a possession distinctly antecedent and
separate from the primary offense, punishment on both crimes has been approved. On
the other hand, where the evidence shows a possession only in conjunction with the
primary offense, then punishment for the illegal possession of the firearm has been held
11
to be improper where it is the lesser offense.’ [Citation.]” (Bradford, at p. 22.) In Jones,
the appellate court “conclude[d] that section 654 is inapplicable when the evidence shows
that the defendant arrived at the scene of his or her primary crime already in possession
of the firearm.” (Jones, supra, 103 Cal.App.4th at p. 1145.)
In the present case, there was substantial evidence from the testimony of Martinez,
Contreras, and Kimes, and the statements Contreras made to Avila, considered together,
that on August 25, 2011, appellant arrived at the crime scene and, consistent with his
habit, possessed on that day a gun in a stash location under the hood of his van. This was
gun possession on August 25, 2011, that was distinctly antecedent and separate from, and
unrelated to, the robbery, and was not merely possession in conjunction with the robbery.
The fact Contreras, who was in protective custody and was worried and nervous at trial,
may have provided conflicting testimony as to whether he saw appellant in possession of
a gun does not compel a contrary conclusion.
The fact the jury found not true an allegation appellant personally used a firearm
when committing the robbery (count 1) does not compel a contrary conclusion. Whether
Penal Code section 654 applies is manifestly a sentencing issue (see Cleveland, supra,
87 Cal.App.4th at p. 268) and, as mentioned, the standard of review applicable to a
sentencing court when determining a section 654 issue is preponderance of the evidence.
A jury’s not true finding on a personal use allegation relating to an offense
generally does not bind a sentencing court from redetermining the personal use issue as a
basis for sentencing based on the preponderance of the evidence standard because the not
true finding merely means the jury was not convinced beyond a reasonable doubt on the
personal use issue. (Cf. Harris, supra, 171 Cal.App.4th 1488, 1497-1498; see In re
Coley (2012) 55 Cal.4th 524, 554.) The sentencing court was free to conclude appellant
directly possessed the firearm during the robbery and, in any event, the issue of whether
appellant engaged in antecedent, separate firearm possession was not presented by the
Penal Code section 12022.53, subdivision (b) enhancement allegation appellant
personally used a firearm in the commission of robbery.
12
3. Appellant Is Entitled to Additional Precommitment Credit.
Appellant was arrested on August 29, 2011, and remained in custody until the
court sentenced him on December 10, 2012, a total of 470 days, inclusive. At the
December 10, 2012 sentencing hearing, the court orally awarded appellant 523 days of
precommitment credit, consisting of 455 days of custody credit and 68 days of conduct
credit. This award is also reflected in the abstract of judgment. Respondent concedes
appellant’s claim he is entitled to an additional 15 days of custody credit. We accept the
concession. Respondent also correctly notes appellant is entitled to an additional two
days of conduct credit. (People v. Bravo (1990) 219 Cal.App.3d 729, 731; People v.
Smith (1989) 211 Cal.App.3d 523, 527; Pen. Code, §§ 667.5, subd. (c)(9), 2900.5, subd.
(a), 2933.1, subd. (c), & 4019.) We will modify the judgment and direct the trial court to
amend the abstract of judgment accordingly (cf. People v. Humiston (1993)
20 Cal.App.4th 460, 466).
13
DISPOSITION
The judgment is modified by awarding appellant a total of 540 days of
precommitment credit, consisting of 470 days of custody credit pursuant to Penal Code
section 2900.5, subdivision (a), and 70 days of conduct credit pursuant to Penal Code
sections 2933.1, subdivision (c) and 4019, and, as modified, the judgment is affirmed.
The trial court is directed to forward to the Department of Corrections an amended
abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
14